Under the Americans with Disabilities Act (“ADA”), discrimination can include an employer’s failure to make reasonable accommodations for applicants or employees who have physical or mental limitations that are known to the employer. These accommodations must be provided unless the employer can demonstrate that the accommodation would impose an undue hardship on the operations of the business. The following is a brief overview of these ADA requirements.
What is a Reasonable Accommodation?
A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Generally, a reasonable accommodation must only be provided if the disability is “known” to the employer, the disabled individual requests one, and the accommodation would not be an undue hardship to the employer.
What are examples of reasonable accommodations?
Accommodations can include restructuring a job, modifying work schedules, acquiring or modifying equipment, permitting the use of service animals, providing qualified readers or interpreters, or appropriately modifying examinations, training, or other programs.
How can an accommodation be an undue hardship?
An undue hardship is a significant disruption, difficulty or expense on the employer. Factors to consider include:
- Nature and cost of the accommodation
- Financial resources of the employer
- Number of employees at the employer
- Overall resources of the employer
- Impact on operations
For which conditions must accommodations be made?
Accommodations must be made for people with physical or mental impairments that substantially limit major life activities, such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. In addition to disabilities, accommodations must also be made for pregnancy, childbirth or a related medical condition and all aspects of religious observance.
How can an employer be found liable under the ADA?
An employer will be liable for the denial of a “reasonable accommodation” if the employee proves:
- She has an ADA covered disability;
- Her employer had notice of her disability;
- A reasonable accommodation would permit her to perform essential functions; and
- Her employer refused to provide accommodation.
The above is for informational purposes only and is not legal advice. If you are an employer and are faced with an issue related to the above, please go through the “Contact Us” page on our website, or call (202) 795-9999.
Clear communication between management and employees enables successful workplace operations and effective risk management. For the new year, employers often find it helpful to revisit their employee handbooks with the help of legal counsel to ensure that their handbooks are consistent with recent changes in labor and employment law. In this post, we provide a high-level overview of the importance of handbooks for employers in the District of Columbia, and some of the necessary components of an employee handbook. This information helps employers manage workplace relations and expectations while mitigating litigation risk.
A complete handbook informs employees about relevant labor and employment laws, including but not limited to, those addressing discrimination and harassment, “legal” marijuana use, reasonable accommodations, paid and unpaid leave, joint-employer status, and wages (e.g. minimum and wage theft). The following describes some aspects of the important District of Columbia laws that employers address in updated handbooks.
- The Accrued Sick and Safe Leave Act of 2008 (amended in 2013) requires an employer who rehires an employee within one year to reinstate unused, accrued paid leave; allows an employee to accrue sick leave in the 90-day introductory period and access it after the end of the period; and requires certain employers with employees who receive tips or commissions to supplement a base wage below the minimum wage to provide a minimum of one hour of paid leave per forty-three hours of work, up to a maximum of five days per year. These calculations can be changed by regulation, and employers are expected to stay current on all changes.
- The Universal Paid Leave Act of 2017 will soon require all covered employers in the District of Columbia to pay into a government fund offering paid leave to all covered employees. Non-government employers will be required to provide notice to their employees of any benefits to which they are entitled.
- District of Columbia Human Rights Law prohibits discrimination in employment because of certain protected traits. The District of Columbia Office of Human Rights maintains a current list of protected traits on its website. As recently as October 2017, the number of protected traits was increased to 20 to include an applicant’s credit information, subject to specific exceptions.
- The Protecting Pregnant Workers Fairness Act of 2014 requires employers to provide reasonable workplace accommodations to employees whose ability to perform job duties is limited because of pregnancy, childbirth, breastfeeding, or a related medical condition.
- The Wage Theft Prevention Act of 2014, amended in 2016, subjects employers to enhanced remedies, fines, and requirements aimed at increasing accountability to bolster enforcement of wage payment laws. It steepens penalties for employers, establishes liability for failure to pay wages in particular circumstances, and strengthens worker protection through anti-retaliation provisions.
- The Wage Transparency Act of 2014, with some exceptions, prohibits employers from barring employees from disclosing their wages to other employees. Employers are also prohibited from retaliating against employees for such disclosures, and from preventing employees from filing complaints against their employer for violations of the act.
Other laws may apply depending on each employer’s situation, including but not limited to the nature of the work and the number of employees employed.
Employee handbooks also give management the proper tools to respond to matters that commonly affect employers such as attendance, paid or unpaid leave, codes of conduct, confidentiality, and complaint intake and investigation procedures. A well-written handbook will guide management through the complaint intake and investigation process, and appropriate disciplinary procedures in response to potential violations of company policies. The handbook is also a resource for management when setting employee expectations for conduct and performance in the workplace. Examples of policies that manage employee expectations are social media and technology use, as well as “dating” policies, which are becoming far more common in the wake of the #me-too movement. By ensuring that managers and employees are all aware of current employment laws, and by establishing clear policies and procedures to manage the employer-employee relationship and expectations, employers can successfully mitigate legal risk.
This post provides a high-level overview of the laws, policies and procedures that should be considered in any employee handbook. This post does not constitute legal advice. Determining whether employer policies and procedures contained in a handbook sufficiently preserve employee rights and protect employers requires careful review by an experienced human resources or legal representative. If you are an employer with questions about the matter contained in this post, or if you are seeking legal advice or representation, please go to the “Contact Us” page of our website, or call us at (202) 795-9999.
Overview of the D.C. Minimum Wage
The minimum wage in the District of Columbia is $13.25 per hour and will increase to $14.00 per hour on July 1, 2019. D.C. Employers may pay “tipped employees” less than this minimum wage, but no less than the tipped minimum wage of $3.89 per hour. The difference between the D.C. minimum wage and a tipped employee’s direct wage paid by the employer is referred to as a “tip credit” that is applied to the employer’s minimum wage obligation. Assuming an employer pays a tipped employee the minimum of $3.89 per hour, the employer would receive a maximum tip credit of $9.36.
- [$13.25 (Minimum Wage)] – [$3.89 (Tipped Minimum Wage)] = [$9.36 (Tip Credit)]
Although Employers can apply the full tip credit to their minimum wage obligation, if the weekly average of an employee’s hourly earnings (tips + wages) do not equal the D.C. minimum wage of $13.25, the employer must compensate the employee with the difference.
Calculating Overtime Wages
While D.C. minimum wage obligations may be straightforward, calculating the tipped minimum wage for employees who work overtime is not as intuitive. The Fair Labor Standards Act (“FLSA”) establishes the rules for calculating overtime wages. This federal law entitles non-exempt employees to at least 1½ times their regular rate of pay for all hours worked over 40 hours in a workweek.
In the District, an employee who is compensated at the minimum wage of $13.25 is entitled to at least $19.88 for each hour worked over 40 hours in a workweek.
- [$13.25 (Minimum Wage)] x [1.5 (Overtime Rate)] = [$19.88 (Overtime Rate of Pay)]
In contrast, if an employee is compensated at the tipped minimum wage, that employee’s direct overtime pay will equal $10.52 per hour for each hour worked over 40 hours in a workweek. So where does this number come from?
For the purposes of this example, let’s assume that an employee is compensated at the tipped minimum wage of $3.89 and at the minimum overtime rate of 1½ times their regular rate of pay.
A common misunderstanding by employers when calculating overtime is to pay 1½ times the employee’s tipped minimum wage of $3.89. If a tipped employee is paid less than the minimum wage of $13.25, overtime is still paid at 1½ times the minimum wage of $13.25.
However, the D.C. tip credit of $9.36 can still be applied. In this example, the tip credit would be subtracted from the overtime rate of pay, which would equal the “tipped overtime rate of pay.”
- [$13.25 (Minimum Wage)] x [1.5 (Overtime Rate)] = [$19.88 (Overtime Rate of Pay)]
- [$19.88 (Overtime Rate of Pay)] – [$9.36 (Tip Credit)] = [$10.52 (Tipped Overtime Rate of Pay)]
Assuming a tipped employee is paid the tipped minimum wage, overtime for that employee would be paid at $10.52 per hour for each overtime hour worked.
This material is for informational purposes only and should not be relied on for legal advice. For legal assistance with an employment matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999.
In 2014 the D.C. Council approved the Fair Criminal Records Screening Act of 2014. This law applies to all employers with 11 or more employees. The recognized term for the law is “ban-the-box” because employers are no longer allowed to inquire into a prospective employee’s criminal background—banning the check box on an application about criminal arrests or convictions. However, it is important to note that while ban-the-box is law, it does not summarily prohibit an employer from accessing an applicant’s criminal background report. The law simply delays the criminal background check until the very end of the hiring process.
Ban-the-Box Applies to Most Private District Employers
Since December 17, 2014, all employers with at least 11 employees in the District are required to adhere to ban-the-box requirements. Employers may not place a question about a job applicant’s criminal history on an employment application or inquire into an applicant’s criminal background until after a conditional offer of employment, or a time when the employer clearly indicates to an applicant that a job is conditioned on a criminal background investigation. Exemptions apply for employers that are required to have a criminal background investigation by law for returning citizen employment programs; and where an employee will be exposed to minors and vulnerable adults.
Specific Ban-the-Box Requirements for Employers during the Hiring Process
On the initial application form or during the hiring process, the law prohibits employers from inquiring into: arrests; criminal accusations made against the applicant that are not pending or did not result in a conviction; and criminal convictions. During the interview process an employer may not inquire into any of the items listed in the initial application section.
Once a conditional offer of employment is extended to the employee, the employer may only inquire into an applicant’s criminal convictions. At no time may a potential employer ask an applicant about arrests or criminal accusations not pending.
Q. Which employers are subject to the law?
A: All employers with at least 11 employee positions in the District of Columbia are required to follow the law. The federal government is not covered under the law.
Q: What type of inquiry is excluded under the law?
A: Covered employers cannot engage in any direct or indirect conduct intended to gather criminal history information from or about an applicant using any method, including application forms, interviews, and criminal history checks before offering the candidate a job. Criminal history information includes:
- Arrests (being apprehended, detained, taken into custody, held for investigation, or restrained by a law enforcement agency due to an accusation or suspicion that the person committed a crime);
- Criminal accusations made against the applicant that are not pending or did not result in a conviction (an existing accusation that an individual has committed a crime, lodged by a law enforcement agency through an indictment, information, complaint, or other formal charge); and
- Criminal convictions (any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation, or a sentence of unconditional discharge).
Q: When, and under what circumstances can a potential employer ask a candidate about past arrests or convictions?
A: Generally, an employer with at least 11 employees may not attempt to determine an applicant’s criminal history until after making a clear offer of employment that is conditioned on a satisfactory criminal background investigation.
Q: Are there any exceptions to the ban-the-box law?
A: Yes. The following three exceptions apply:
- Positions required by state or federal law to include a criminal background investigation (for example, armed security);
- Positions designated by government program or obligation to encourage employment of those with criminal histories;
- Positions with any employer that provides programs, services, or direct care to minors or vulnerable adults. An example includes applicants seeking placement as cleaning or maintenance staff in a childcare facility, school, some universities, and facilities for vulnerable adults.
Q: Does the law distinguish between arrests or convictions in other jurisdictions than D.C.?
A: No, the law prohibits any inquiry into arrests, criminal accusations not pending, and criminal convictions.
Q: What if an applicant volunteers his or her criminal background?
A: While an employer may not ask or investigate an applicant’s criminal convictions until after a conditional offer of employment, the law does not address the employer’s response when an applicant chooses to divulge his or her criminal background.
Q: What if an applicant is given a conditional offer and his or her criminal background makes the employer decide the applicant is not suitable for the position because of his or her criminal convictions?
A: An employer who properly asks about a criminal conviction can only withdraw the offer or take adverse action against the applicant for a legitimate business reason that is reasonable when considering all of these six factors:
- Specific duties and responsibilities necessarily related to the employment;
- Fitness or ability of the person to perform one or more job duties or responsibilities given the offense;
- Time elapsed since the occurrence of the offense;
- Age of the applicant when the offense occurred;
- Frequency and seriousness of the offense; and
- Information provided by applicant on his or her behalf that indicates rehabilitation or good conduct since the offense occurred.
Q: What is an employer’s responsibility after denying employment based on a legitimate business reason that is reasonable under the six factor test?
A: An employer that rescinds a conditional offer of employment or takes adverse action on an applicant based on a criminal background, must provide to the applicant a notice advising the applicant about the right to file a complaint with the District’s Office of Human Rights. Within 30 days of the action by the employer, an applicant can request a copy of all records procured by the employer in consideration of the applicant, including criminal records. The employer must provide the documentation within 30 days of receipt of the request. The District of Columbia Office of Human Rights (“OHR”) is charged with enforcing the law. OHR accepts and investigates complaints that allege violations of the law, and when violations are found, penalties can be imposed.
Q: What are the penalties for violation of the law?
A: If the Commission on Human Rights determines a violation occurred, penalties may be imposed with half of the amount going to the complainant and half to the District, up to the following amounts:
- $1000 for employers with 11 to 30 employees;
- $2500 for employers with 31 to 99 employees; and
- $5000 for employers with 100 or more employees.
This material is for informational purposes only and should not be relied upon as legal advice. For legal assistance, contact our Firm through the “Contact Us” section of our website, or call us at 202-795-9999.
Are you a potential landlord considering renting out residential property in D.C.? There are a couple things you need to know.
If you own residential property in the District of Columbia, you must register the property with the D.C. government before leasing that property to a tenant.
STEP 1: A BUSINESS LICENSE
Renting out a property is considered a business, and businesses in the District of Columbia must have a Basic Business License (“BBL”) to legally operate, even if your goal is to rent one single-family home, for example. The agency responsible for issuing basic business licenses is the D.C. Department of Consumer & Regulatory Affairs (“DCRA”). Prospective landlords may apply for a basic business license through DCRA’s website, in-person or by mail. To do so, a landlord must submit:
- A BBL Application from DCRA;
- Corporate Registration from DCRA (unless you are a sole proprietor);
- Tax Registration (Form FR-500) from the D.C. Office of Tax and Revenue;
- Certificate of Occupancy from DCRA (If renting two or more units); and
- Rental Accommodation Registration Form from D.C. Department of Housing and Community Development (“DHCD”).
When completing the BBL application, you must certify ownership of the property and state the type of business entity under which the application is being submitted (Ex. Sole Proprietor, Partnership, Limited Liability Company, etc.).
If your business is anything other than a sole proprietor, you must register with the Corporations Division of DCRA and submit proof of registration with the BBL application. The BBL application also requires applicants to sign a “Clean Hands Self-Certification,” stating that your business does not owe more than $100 of outstanding debt, penalties and fees to the District of Columbia government.
All BBL applicants must submit the Tax Registration Form (FR-500). The FR-500, or Combined Business Tax Registration Form, is used to register a business so the D. C. Office of Tax and Revenue (“OTR”) can collect taxes. This form may also be submitted online through the OTR website.
If your property is not a single-family dwelling, then you will also be required to obtain a Certificate of Occupancy from DCRA. A Certificate of Occupancy is a document that specifies the use of a building and must be posted in a conspicuous place on the premises to be rented.
Additionally, you must submit a DHCD Rental Accommodation Division (RAD) Registration form. This form is to either register for, or claim an exemption from, rent control requirements. Every housing accommodation or rental unit must be registered by filing a RAD Registration and Claim of Exemption form. Once registered, the housing accommodation or rental unit is assigned a registration number. If the housing accommodation or rental unit is subject to an exemption, it is assigned an exemption number.
STEP 2: PROPERTY INSPECTION
All applicants for a BBL in the One Family Rental category are required to have a housing inspection within 45 days of receiving their BBL. Appointments for housing inspections are scheduled and conducted by DCRA. This inspection is performed to ensure the premises comply with District housing codes, and is necessary to ensure the health and safety of renters. Any issues identified during the inspection must be remedied in order to rent your unit.
STEP 3: REGISTER RENTAL HOUSING PROPERTY WITH DHCD
The RAD form, which is part of the BBL process, must also be filed with DHCD after the BBL has been issued. At that point, if you are a prospective landlord and follow the above-listed steps, you should be able to register your rental property in the District of Columbia and collect rent legally.
Please note that the above example is for informational purposes only and does not constitute legal advice. If you are a prospective landlord seeking the advice of counsel, please contact our firm through the “Contact Us” page on our website or calling (202) 795-9999.